Kalabharati Advertising V/s Hemant Vimalnath Narichania SLP (C) Nos.25043-25045 of 2008 September 6, 2010

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. OF 2010
(Arising out of SLP (C) Nos.25043-25045 of 2008)



Kalabharati Advertising ...Appellant

Versus
Hemant Vimalnath Narichania
and Ors. ...Respondents



JUDGMENT


Dr. B.S. CHAUHAN, J.


1. Delay condoned. Leave granted.


2. These appeals have been preferred against the judgment and orders

dated 4.2.2008/13.2.2008 passed by the High Court of Judicature at Bombay

in Writ Petition No.2366 of 2007 and the consequential order dated

8.2.2008, as amended vide order dated 11.2.2008 passed by the Municipal

Corporation of Greater Mumbai by which the hoarding fixed by the

appellant in the Anand Darshan Co-operative Housing Society Ltd.,
Respondent No.13 (hereinafter called the "Society") had been removed in

spite of agreements between the parties.






3. Facts and circumstances giving rise to these appeals are that the

appellant who is carrying out a business of advertisement hoardings within

the city of Bombay approached the Society in 2001 for grant of permission

to erect a hoarding admeasuring 40'x20' in its compound. The Society

passed a Resolution in the year 2001, permitting the appellant to erect a

hoarding of the aforesaid measurement. The appellant applied to the

Municipal Corporation (hereinafter called the "Corporation") for grant of

necessary permission for erecting the same. The said application was

allowed by the Corporation vide order dated 4.8.2001. Subsequent thereto

an agreement dated 5.9.2001 was executed between the appellant and the

Society for a period of three years on various terms and conditions

mentioned therein, and was given effect to. The said agreement was

renewed after expiry of the period of three years in the year 2004 by the

Society and ultimately vide Resolution dated 12.8.2007 for a further period

of three years.

4. During this period, a Public Interest Litigation, being Writ Petition

No.1132 of 2002 was filed before the Bombay High Court by one Dr.



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Anahita Peadoin against the Municipal Corporation of Greater Mumbai

pertaining to the grant of permission for hoardings in Mumbai alleging

various violations of guidelines issued by the Corporation for the said

purpose. The Bombay High Court while entertaining the writ petition

constituted a Committee to find out violations of the guidelines of the

hoardings in Mumbai and the Committee found that 266 hoardings including

that of the appellant had been in violation of the guidelines issued by the

Corporation. So far as the appellant is concerned, the Committee came to

the conclusion that the said hoarding had been in violation of condition

Nos.16(f) and 16(c), i.e., obstructing the air, light and ventilation and

situated in the compulsory open space.



5. The Bombay High Court vide its order dated 1.10.2002 directed the

aggrieved parties to file representation before the Statutory Authority, i.e.,

Deputy Municipal Commissioner, against the findings of the Committee

constituted by the Court. Accordingly, the appellant made a representation

before the said authority and the said representation was disposed of on

6.4.2004, after giving opportunity of hearing to the appellant and examining

the facts in the presence of officers/representatives of the respondent-

Corporation, coming to the conclusion that the hoarding of the appellant was



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not violative of guideline No.16(f). So far as violation of guideline No.16(c)

was concerned, the appellant was directed to apply to the Chief Engineer

(DP) for condonation of compulsory open space clause of guidelines within

15 days with an observation that regularisation of the hoarding would be

subject to the outcome of Writ Petition No.1132 of 2002.



6. In pursuance to the order dated 6.4.2004, appellant approached the

said Authority vide representation dated 1.6.2004. The said representation

was marked/assigned to the Assistant Engineer (BP) and he was directed to

examine the case. The said Assistant Engineer (BP) City-III examined the

case and had also made physical verification of the hoarding and prepared

the report dated 16.7.2007 to the effect that there was no violation of clause

16(c) of the guidelines. The said report was placed before the Executive

Engineer (BP) City-I of the Corporation who approved the same vide order

dated 17.7.2007.



7. There had been some dispute between the Society and some of its

members and those members raised certain objections/complaints against the

erection of the hoarding in question. Those members approached the Co-

operative Court challenging the Resolution passed by the Society in favour

of the appellant for granting permission to erect the hoarding and also made


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an application for interim relief. However, the Co-operative Court

dismissed the application for interim relief.



8. Being aggrieved, some of the members of the Society (Respondent

Nos.1 to 5) filed Writ Petition No.2366 of 2007 before the Bombay High

Court against the Society and the appellant for cancellation of the

permission granted in favour of the appellant. During the course of hearing

of the said writ petition on 4.2.2008, the Joint Municipal Commissioner

(Education), Shri S.S. Shinde filed an affidavit to withdraw the earlier order

approving the erection and for permission to pass a fresh order in accordance

with law. The court accepted the said affidavit and permitted the

Corporation to withdraw its earlier order with further liberty to pass fresh

orders without giving an opportunity of hearing to the appellant or the

Society as it had already been done while passing the earlier order. In

pursuance of the said order, a fresh order was passed by the respondent-

Corporation on 11.2.2008, not approving the erection of hoarding which had

earlier been approved. Hence, these appeals.




9. Shri Ravi Shankar Prasad, Ld. Senior Counsel for the appellant,

submitted that as the PIL, i.e., Writ Petition (Civil) No.1132 of 2002 in



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which certain direction had been issued by the High Court and a Committee

was constituted to examine as to whether hoardings were in violation of the

guidelines and an action had been taken in pursuance thereof, is still

pending, even if the respondent nos.1 to 5 were aggrieved of any order of the

Corporation, they ought to have moved an application for intervention and

for further direction in the said Writ Petition No.1132 of 2002. An

independent writ petition could not have been filed. So far as the internal

dispute between the Society and some of its members is concerned, it is still

pending with the Co-operative Court. Only an application for interim relief

had been dismissed. Therefore, the writ petition itself was not maintainable

as the said respondents had chosen the forum of Co-operative Court under

the provisions of Maharashtra Co-operative Societies Act, 1960 (hereinafter

called as `Act"). The High Court had permitted the respondent-Corporation

to withdraw its earlier order and to pass a fresh order, that tantamounts to

conferring the jurisdiction of review upon the statutory authority, though

such power had not been conferred by the Statute. Therefore, the order

conferring such power itself is without jurisdiction. The Corporation passed

subsequent order without assigning any reason and giving opportunity of

hearing to the appellant. It is a clear cut case of legal malice. More so, the

respondent Nos. 1 to 5, have been permitted to withdraw the Writ Petition



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No.2366 of 2007 itself vide order dated 13.2.2008, therefore, all orders

passed therein by the High Court as well as the consequential orders passed

by the Corporation stood automatically washed away. Thus, the appellant

should be permitted to continue its business with the Society as if no order

had ever been passed by the Court or Corporation in regard to the hoardings

in question.



10. On the contrary, Shri Atul Yeshwant Chitale, Ld. Senior Counsel

appearing for the respondent-Corporation, has submitted that a new policy

dated 10.1.2008 has come into existence. The case of the appellant shall be

considered strictly in accordance with the terms and conditions incorporated

therein. Thus, an opportunity should be given to the respondent-Corporation

to consider the case afresh.

Shri Ratan Kumar Singh, Ld. Counsel appearing for respondent nos.1

to 5 (original writ petitioners) has submitted that withdrawal of the writ

petition does not have any bearing on these appeals as the same had been

withdrawn after being satisfied that their grievances stood fully redressed by

the interim orders passed by the High Court and consequential orders passed

by the Corporation. The order passed by the Corporation could not be

challenged before this Court directly, without approaching the High Court.



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The pendency of the dispute between the Society and its members before the

Co-operative Court could not create any hindrance for them to approach the

High Court by filing a fresh Writ Petition as they were not parties in the

earlier Writ Petition No.1132 of 2002. The hoardings in question had been

in violation of the guidelines of the Corporation and thus, subsequent orders

passed by the Corporation do not require any interference. Thus, the appeals

have no merit and are liable to be dismissed.



11. We have considered the rival submissions made by both the parties

and perused the record.




LEGAL ISSUES:

Review in absence of statutory provisions:

12. It is settled legal proposition that unless the statute/rules so permit,

the review application is not maintainable in case of judicial/quasi-judicial

orders. In absence of any provision in the Act granting an express power of

review, it is manifest that a review could not be made and the order in

review, if passed is ultra-vires, illegal and without jurisdiction. (vide: Patel

Chunibhai Dajibha v. Narayanrao Khanderao Jambekar & Anr., AIR




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1965 SC 1457; and Harbhajan Singh v. Karam Singh & Ors., AIR 1966

SC 641).


13. In Patel Narshi Thakershi & Ors. v. Shri Pradyuman Singhji

Arjunsinghji, AIR 1970 SC 1273; Maj. Chandra Bhan Singh v. Latafat

Ullah Khan & Ors., AIR 1978 SC 1814; Dr. Smt. Kuntesh Gupta v.

Management of Hindu Kanya Mahavidhyalaya, Sitapur (U.P.) & Ors.,

AIR 1987 SC 2186; State of Orissa & Ors. v. Commissioner of Land

Records and Settlement, Cuttack & Ors., (1998) 7 SCC 162; and Sunita

Jain v. Pawan Kumar Jain & Ors., (2008) 2 SCC 705, this Court held

that the power to review is not an inherent power. It must be conferred

by law either expressly/specifically or by necessary implication and in

absence of any provision in the Act/Rules, review of an earlier order is

impermissible as review is a creation of statute. Jurisdiction of review can be

derived only from the statute and thus, any order of review in absence of any

statutory provision for the same is nullity being without jurisdiction.



14. Therefore, in view of the above, the law on the point can be

summarised to the effect that in absence of any statutory provision providing

for review, entertaining an application for review or under the garb of

clarification/ modification/correction is not permissible.


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Case dismissed/withdrawn- effect on interim relief:


15. No litigant can derive any benefit from the mere pendency of a case in

a Court of Law, as the interim order always merges into the final order to be

passed in the case and if the case is ultimately dismissed, the interim order

stands nullified automatically. A party cannot be allowed to take any benefit

of his own wrongs by getting an interim order and thereafter blame the

Court. The fact that the case is found, ultimately, devoid of any merit, or the

party withdrew the writ petition, shows that a frivolous writ petition had

been filed. The maxim "Actus Curiae neminem gravabit", which means that

the act of the Court shall prejudice no-one, becomes applicable in such a

case. In such a situation the Court is under an obligation to undo the wrong

done to a party by the act of the Court. Thus, any undeserved or unfair

advantage gained by a party invoking the jurisdiction of the Court must be

neutralised, as the institution of litigation cannot be permitted to confer any

advantage on a party by the delayed action of the Court. (vide: Dr. A.R.

Sircar v. State of Uttar Pradesh & Ors., 1993 Supp. (2) SCC 734; Shiv

Shanker & Ors. v. Board of Directors, Uttar Pradesh State Road

Transport Corporation & Anr., 1995 Supp. (2) SCC 726; the Committee

of Management, Arya Inter College, Arya Nagar, Kanpur & Anr. v.

Sree Kumar Tiwary & Anr., AIR 1997 SC 3071; GTC Industries Ltd. v.

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Union of India & Ors., AIR 1998 SC 1566; and Jaipur Municipal

Corporation v. C.L. Mishra, (2005) 8 SCC 423).



16. In Ram Krishna Verma & Ors. v. State of U.P. & Ors., AIR 1992

SC 1888, this Court examined the issue while placing reliance upon its

earlier judgment in Grindlays Bank Limited v. Income Tax Officer,

Calcutta & Ors., AIR 1980 SC 656 and held that no person can suffer from

the act of the Court and in case an interim order has been passed and the

petitioner takes advantage thereof, and ultimately the petition stands

dismissed, the interest of justice requires that any undeserved or unfair

advantage gained by a party invoking the jurisdiction of the Court must be

neutralized.



17. A similar view has been reiterated by this Court in Mahadeo

Savlaram Shelke & Ors. v. Pune Municipal Corporation & Anr., (1995)

3 SCC 33.



18. In South Eastern Coalfields Ltd. v. State of M.P. & Ors., AIR 2003

SC 4482, this Court examined this issue in detail and held that no one shall

suffer by an act of the Court. The factor attracting the applicability of

restitution is not the act of the Court being wrongful or a mistake or error


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committed by the court; the test is whether an act of the party persuading the

Court to pass an order held at the end as not sustainable, has resulted in one

party gaining an advantage it would not have otherwise earned, or the other

party suffering an impoverishment which it would not have suffered but for

the order of the Court and the act of such party. There is nothing wrong in

the parties demanding to be placed in the same position in which they would

have been had the Court not intervened by its interim order, when at the end

of the proceedings, the Court pronounces its judicial verdict which does not

match with and countenance its own interim verdict. The injury, if any,

caused by the act of the Court shall be undone and the gain which the party

would have earned unless it was interdicted by the order of the Court would

be restored to or conferred on the party by suitably commanding the party

liable to do so. Any opinion to the contrary would lead to unjust if not

disastrous consequences. The Court further held :

".....Litigation may turn into a fruitful industry.
Though litigation is not gambling yet there is an element of
chance in every litigation. Unscrupulous litigants may feel
encouraged to approach the courts, persuading the Court to
pass interlocutory orders favourable to them by making out
a prima facie case when the issues are earlier to be heard
and determined on merits and if the concept of restitution is
excluded from application to interim orders, then the
litigant would stand to gain by swallowing the benefits
yielding out of the interim order even though the battle has
been lost at the end. This cannot be countenanced. We are,
therefore, of the opinion that the successful party finally

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held entitled to a relief assessable in terms of money at the
end of the litigation, is entitled to be compensated......"



19. In Karnataka Rare Earth & Anr. v. Senior Geologist, Department

of Mines & Geology & Anr., (2004) 2 SCC 783, a similar view has been

reiterated by this Court observing that the party who succeeds ultimately is

to be placed in the same position in which they would have been if the Court

would not have protected them by issuing interim order.


20. The aforesaid judgments are passed on the application of legal maxim

"sublato fundamento cadit opus", which means in case a foundation is

removed, the superstructure falls.


21. In Badrinath v. State of Tamil Nadu & Ors., AIR 2000 SC 3243,

this Court observed that once the basis of a proceeding is gone, all

consequential acts, action, orders would fall to the ground automatically and

this principle of consequential order which is applicable to judicial and

quasi-judicial proceedings is equally applicable to administrative orders.


Court-cannot be used only for interim relief:

22. It is a settled legal proposition that the forum of the writ court

cannot be used for the purpose of giving interim relief as the only and the



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final relief to any litigant. If the Court comes to the conclusion that the

matter requires adjudication by some other appropriate forum and relegates

the said party to that forum, it should not grant any interim relief in favour of

such a litigant for an interregnum period till the said party approaches the

alternative forum and obtains interim relief. (vide: State of Orissa v.

Madan Gopal Rungta, AIR 1952 SC 12; Amarsarjit Singh v. State of

Punjab, AIR 1962 SC 1305; State of Orissa v. Ram Chandra Dev, AIR

1964 SC 685; State of Bihar v. Rambalak Singh "Balak" & Ors., AIR

1966 SC 1441; and Premier Automobiles Ltd. v. Kamlakar Shantaram

Wadke & Ors., AIR 1975 SC 2238).


23. It is settled proposition that an order of withdrawal of a suit does not

amount to a decree of the court, which can be executed. (See:

Kandapazha Nadar & Ors. v. Chitraganiammal & Ors. AIR 2007

SC 1575).


24. It is not permissible for a party to file a writ petition, obtaining certain

orders during the pendency of the petition and withdraw the same

without getting proper adjudication of the issue involved therein and

insist that the benefits of the interim orders or consequential orders




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passed in pursuance of the interim order passed by the writ court

would continue. The benefit of the



interim relief automatically gets withdrawn/neutralized on withdrawal of the

said petition. In such a case concept of restitution becomes applicable

otherwise the party would continue to get benefit of the interim order even

after loosing the case in the court. The court should also pass order

expressly neutralizing the effect of all consequential orders passed in

pursuance of the interim order passed by the court. Such express directions

may be necessary to check the rising trend among the litigants to secure the

relief as an interim measure and then avoid adjudication on merits. (Vide

Abhimanyoo Ram v. State of U.P., (2008) 17 SCC 73).



Legal Malice:

25. The State is under obligation to act fairly without ill will or malice- in

fact or in law. "Legal malice" or "malice in law" means something done

without lawful excuse. It is an act done wrongfully and wilfully without

reasonable or probable cause, and not necessarily an act done from ill feeling

and spite. It is a deliberate act in disregard to the rights of others. Where

malice is attributed to the State, it can never be a case of personal ill-will or



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spite on the part of the State. It is an act which is taken with an oblique or

indirect object. It means exercise of statutory power for "purposes foreign to

those for which it is in law intended." It means conscious violation of the

law to the prejudice of another, a depraved inclination on the part of the

authority to disregard the rights of others, which intent is manifested by its

injurious acts. (Vide Addl. Distt. Magistrate, Jabalpur v. Shivakant

Shukla, AIR 1976 SC 1207; Smt. S.R. Venkataraman v. Union of India,

AIR 1979 SC 49; State of A.P. v. Goverdhanlal Pitti, AIR 2003 SC 1941;

Chairman and M.D., B.P.L. Ltd. V. S.P. Gururaja & Ors., (2003) 8 SCC

567; and West Bengal State Electricity Board v. Dilip Kumar Ray, AIR

2007 SC 976).

26. Passing an order for an unauthorized purpose constitutes malice in

law. (Vide Punjab State Electricity Board Ltd. v. Zora Singh & Ors.,

(2005) 6 SCC 776; and Union of India Through Government of

Pondicherry & Anr. v. V. Ramakrishnan & Ors., (2005) 8 SCC 394).

27. The instant case is required to be examined in the light of the

aforesaid settled legal propositions.

Admittedly, Writ Petition No. 1132 of 2002, wherein the issue of

examining the violation of guidelines issued by the Corporation had been

raised and the High Court had passed certain directions which had been


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complied with and in pursuance of the same the Corporation passed an order

dated 6.4.2004 that an order passed by it would be subject to the decision in

the said Writ Petition No. 1132 of 2002 is still pending before the High

Court. In such a fact-situation, if the respondent Nos. 1 to 5 were aggrieved

by the order passed by the Corporation they ought to have filed an

application for intervention and appropriate directions in the said writ

petition. Undoubtedly, there could be no prohibition for filing a fresh writ

petition, but it would have been more appropriate for them to file an

application in the said pending writ petition as it is necessary that

contradictory orders must not be passed in similar circumstances.



28. The High Court could not have allowed the Corporation to recall its

earlier order and pass a fresh order, that too, without giving an opportunity

of hearing to the appellant and the Society. Review is a statutory remedy. In

spite of several queries put by us to the learned counsel for the respondents,

no provision for review under the statute could be brought to our notice.

The court cannot confer a jurisdiction upon any authority. Conferring

jurisdiction upon a Court/Tribunal/Authority is a legislative function and

the same cannot be conferred either by the court or by the consent of the

parties. Such an order passed by the High Court is without jurisdiction and,



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therefore, a nullity. Any order passed in pursuance thereof, also remains

unenforceable and inexecutable. More so, the High Court could not have

permitted the Corporation to pass an order without giving an opportunity of

hearing to the appellant and the society. More so, the Corporation could not

pass an order recalling the order passed by it earlier and reviewing the same

without assigning any reason. It was obligatory on the part of the

Corporation to explain as to what was the material on record on the basis of

which the earlier order has been changed. Thus, the order passed by the

Corporation stood vitiated for not recording reasons and violating the

principles of natural justice. It establishes the allegations of legal malice

made by the appellant against the Corporation.



29. The submission made on behalf of respondent Nos. 1 to 5 that

appellant could not challenge the orders passed by the Corporation directly

before this Court without approaching the High Court is preposterous for the

reason that Corporation passed the impugned orders in pursuance of the

orders passed by the High Court itself. In fact, it could amount to

challenging the basic order passed by the High Court before itself under the

garb of challenging the consequential orders passed by the Corporation.

"The clitch of appeal from Ceasar to Ceasar's wife can only be bettered by



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appeal from one's own order to oneself." (See Ram and Shyam Company

v. State of Haryana & Ors., AIR 1985 SC 1147).


30. It has been mentioned by the appellant in the petition that respondent

No. 1 himself has vetted the agreement reached between the appellant and

the respondent-society and was a party to the same. Therefore, he was fully

aware as what was the agreement and how it would be given effect to. The

respondent No.1 has not denied this averment. Nor he has explained as to

what were the changed circumstances, which made him aggrieved. More so,

if the said respondent Nos. 1 to 5 were aggrieved of the order passed by the

Co-operative Court rejecting their application of interim relief, they could

have approached the appropriate forum challenging the same, rather they

have chosen to approach the High Court leaving the matter pending before

the Co-operative Court.



31. Respondent No.1 had approached the Co-operative Court and could

not get the interim relief. He filed a writ petition along with others after

meeting his waterloo there. Subsequently, after obtaining the interim orders

from the High Court and consequential orders from the Corporation

withdrew the writ petition.




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The respondent Nos. 1 to 5 for the reasons best known to them have

prayed for withdrawal of the Writ Petition No. 2366 of 2007 and the High

court vide order dated 13.2.2008 allowed the said respondents to withdraw

the same. The order reads as under:

"As per the statement by Mr. S.U. Kamdar on 4th
February, 2008, the earlier order has been withdrawn by
the corporation and fresh order has been passed by the
concerned officer. The copy of the said order is produced.
It is marked Exhibit-X for identification purpose. Mr. S.U.
Kamdar has further reported to the court that the action of
removal of the hoardings has already been commenced
and it will be completed within two to three days.

In view of the fresh order passed by the corporation
marked Exhibit-X and the statement of Mr. S.U. Kamdar,
learned counsel for the petitioner states that the grievance
in the petition is redressed and, therefore, he may be
allowed to withdraw the petition with liberty to file similar
type of petition if occasion so arises.

Petition is allowed to be withdrawn with liberty as
prayed for."


32. "Withdrawal" means "to go away or retire from the field of battle or

any contest." Thus, the word `withdrawal' is indicative of the voluntary and

conscious decision of a person. Therefore, if the said writ petitioners

(respondent Nos. 1 to 5) have voluntarily abandoned their claim

withdrawing the said writ petition, they cannot be permitted to take any

benefit of the orders passed by the High Court or the statutory authority in



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pursuance thereof. Once the foundation is removed, the super-structure is

bound to fall. Interim relief is granted only in aid of and as ancillary to the

main relief which may be available to the party at the time of final

adjudication of the case by the court. In case the orders passed by the High

Court and, consequently, by the Corporation are accepted to be in effect

even today, it would be tantamount to allowing the writ petition without any

adjudication on the issues involved therein. After obtaining interim relief, a

party cannot avoid final adjudication of the dispute on merit and claim that

he would enjoy the fruits of interim relief even after withdrawal/dismissal of

the case. Law certainly would not permit such a course. Respondent No.1

is a practising advocate. He is not a layman, nor it can be assumed that he

could not understand the consequences of withdrawal of the writ petition.

Therefore, all orders passed by the High Court and the statutory authority

stood washed away on withdrawal of the said writ petition and the said writ

petitioners cannot claim any benefit of either of the same.



33. In view of the above, appeals deserve to be allowed to the effect that

the appellant and the respondent-Society may act as if no order had ever

been passed, adversely affecting their contract, by the High Court in Writ




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Petition No.2366 of 2007 or any statutory authority and they may proceed

with the agreement/contract in accordance with law.




34. Needless to say that this judgment/order would have no bearing on the

order passed by any court/tribunal or statutory authority independent of the

proceedings taken in Writ Petition No. 2366 of 2007.




35. The appeals are allowed as explained hereinabove. No order as to

cost.




............................J.
(P.
SATHASIVAM)



............................J.
New Delhi, (Dr. B.S. CHAUHAN)
September 6, 2010




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